The Dawn of the Unitary Patent Era in Europe

The Unitary Patent Era is on its way to Europe. Depending how quickly the structures and personnel for the associated courts are established, the Unitary Patent Era should arrive in either 2022 or 2023. After several challenges raised by choice of language, Brexit, and German litigation, the Unitary Patent came one step closer to reality when Austria approved ratification of the Protocol on the Provisional Application (PPA) of the Agreement on a Unitary Patent Court (known in Europe as the UPCA) on December 2, 2021. Accordingly, Austria is soon becoming the thirteenth European Union member to ratify the PPA, which clears the way for the establishment of the UPCA in 16 and up to 24 of the 27 members of the European Union (Croatia, Poland, and Spain will not participate in the UPCA in the near future).

Presently, patent protection is available in a European Union country by obtaining a patent from that particular country or by nationalizing a European Patent Community (EPC) patent in that country. Enforcement of a patent is subject to the patent laws of the country associated with the patent and so there is the possibility of different results depending on the country of enforcement.

A unitary patent is what it suggests. A single patent that can be enforced in those member countries of the European Union that have signed on to the UPCA. Courts of First Instance will be established in member countries and Courts of Appeal will be established in Luxembourg. The European Court of Justice will be the final arbiter.

A unitary patent is based on a classical European Patent that has been examined and granted by the European Patent Office. After the classical European Patent has been granted, there is one month to request a corresponding Unitary Patent. After a transition period that ends with the seven year anniversary of ratification of the UPCA (wherein such transition period might be extended for an additional seven years), the UPCA courts will have exclusive jurisdiction over all classical European Patents being asserted in those EU countries that have elected to participate in the UPCA. During the previously described seven year transition period, papers can be filed that result in opting out of having the UPCA courts have jurisdiction to a particular classical European patent.

The above summary presents a number of decisions for owners of classical European patents and pending patent applications. For example, should prosecution of a pending application be delayed so that any future granted European Patent can have Unitary Effect in the participating member states in the UPCA? Should an invention be presented in a single patent and subject to a Unitary Patent Court system and the danger of invalidation by that Court system? Should an invention be presented in multiple national patents and so attempts at invalidation may have different results depending on the laws of the country in which the patent is asserted? These and other issues should be considered for each European case and the attorneys at Crowell & Moring will be happy to review those issues with you.